EMPLOYMENT CASE LAW / HUMAN RESOURCE MANAGEMENT​ – Agency workers

​Agency Workers can often be categorised as being atypical workers. Agency Workers include individuals employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the Employment Agency. Employment Agencies are Organisations (including a temporary work agency) engaged in an economic activity who employ an individual under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the first-mentioned person.

Hirers of Agency Workers are Organisations engaged in an economic activity for whom, and under the direction and supervision of whom, an Agency Worker carries out work pursuant to an agreement (whether in writing or not) between the employment agency by whom the Agency Worker is employed and the first-mentioned person or any other person.

Agency Workers are entitled to:

Equal treatment in relation to their basic working and employment conditions as if they were directly recruited by the Hirer to the same or similar job.

Information on job vacancies in the Hirer in the same way as if they had been directly recruited by the Hirer to the same or similar job.

Access collective facilities and amenities in the same way as if they had been directly recruited by the Hirer to occupy the same or similar job. This is the only aspect of the legislation that allows for objective justification for refusal by a Hirer to the facilities/amenities. The objective justification cannot be based on economic considerations but would, for instance, allow for a situation where a rota system/waiting list applies to direct employees for particular facilities. In the same way, this conditionality would apply also to Agency Workers.

In terms of rest periods, rest breaks during the working day, annual leave, and public holidays which are in addition to statutory entitlements, an Agency Worker is entitled to the same entitlement as if they had been directly recruited to the same or similar job by the Hirer. For example, if a direct recruit is entitled to a 30-minute rest break, the Agency Worker is entitled to the same. If the direct recruit is entitled to a paid break, the Agency Worker is also entitled to this.

In relation to annual leave, if the Organisation provides an entitlement to annual leave which is in excess of the statutory minimum, for example, a direct recruit is entitled to 25 days annual leave in any 12-month period, the Agency Worker is entitled to the same. This will be pro-rated in the case of Agency Workers who are on assignment for only part of a leave year. Additionally, Agency Workers are entitled to statutory public holiday entitlements in the same way as direct recruits.

Agency Workers are also entitled to be provided with information relating to any relevant job vacancies within the Hirer, which would be available to a direct recruit. The Hirer can select how to publicise vacancies, and whatever method is used by the Hirer, Agency Workers should know how to access and where to access this information.